Posts Tagged ‘Philip Alston’

Foreign policy incompetence; further opinion on President Obama as “Executioner in Chief”

Wednesday, June 6th, 2012

[Please check back for updates.]

See The Trenchant Observer, “More news and opinion on President Obama as ‘Executioner in Chief,'” June 3, 2012 (Updated June 4, 2012)

The Trenchant Observer, “President Obama as ‘Executioner in Chief,'” June 1, 2012

Thoughtful analysis and opinion may benefit from reflection over time. Reactions to the recent revelations by the New York Times on the role played by President Obama as “Executioner in Chief” continue.

As the following article by Dan Simpson suggests, the President may eventually pay a high price for his willful ignorance and disdain for international law.

See Dan Simpson, “Is Obama committing crimes? He might someday be prosecuted for ordering drone attacks,” Pittsburgh Post-Gazette, June 6, 2012.

See also Ramesh Thakur, “Obama drifts further to dark side with drone war,” Canberra Times, June 7, 2012 (op-ed).

Pankaj Mishra, “From dreams to drones — who is the real Obama?” Dawn, June 6, 2012
.

Because he dismisses international law, Obama doesn’t know how to use it to his advantage when possible, or to avoid “rookie” mistakes in foreign policy when undertaking actions that are way over the line in terms of its prohibitions.

These shortcomings are significant factors in the incompetence of President Obama as a foreign policy leader, and the incompetence of his foreign policy team, “the gang who couldn’t shoot straight.” Obama leads a foreign policy juggernaut that sometimes acts blindly, without regard for the medium and longer-term consequences of its actions.

In the last few weeks alone, Obama has pursued a policy of  “working with the Russians” to find a solution to the grave crisis in Syria, revealed through orchestrated leaks that he is personally directing drone strikes in Yemen, Somalia, and Pakistan, and the details of the criteria used to place an individual on the White House “kill list” (some of which are far beyond the bounds of international law, as interpreted by a neutral third party). 

See The Trenchant Observer, “Targeted Killings: U.N. Special Rapporteur Alston Publishes Report to U.N. Human Rights Council,” June 2, 2010

Further, through leaks he has revealed that the United States has conducted cyber warfare against the nuclear facilities of Iran, launching cyber attacks that cause centrifuges to explode.

See David E. Sanger, ” Obama Order Sped Up Wave of Cyberattacks Against Iran,” New York Times, June 1, 2012.

In undertaking these actions without taking the trouble to develop with other countries legal frameworks that might limit the use of drone attacks or cyber warfare in the future, Obama has established precedents that could lead other countries, carrying out similar actions, to inflict extreme damage on the national security of the United States and the safety of its citizens.

By making these covert actions public, for blatantly political purposes, Obama has revealed classified information without a viable justification, and greatly complicated the task of developing legal regimes that will effectively regulate the use of targeted killings and the conduct of cyber warfare in the future. 

This amounts to foreign policy incompetence of a high order.

The Trenchant Observer

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For links to other articles by The Trenchant Observer, click on the title at the top of this page to go to the home page, and then use the “Search” Box or consult the information in the bottom right hand corner of the home page. The Articles on Syria page can also be found here. The Articles on Targeted Killings page can also be found here.

Obama’s New Year’s Resolutions for Foreign Policy in 2012

Thursday, January 5th, 2012

The Observer has been trying to get inside President Obama’s head for over two years. Recently, he may have succeeded, or had a very strange dream, in which the following was revealed:

Obama’s 10 New Year’s Resolutions for Foreign Policy in 2012

1. Ok, I will finally try to read through the impenetrable legalese of Philip Alston’s Report to the Human Rights Council on the legality under international law of U.S. drone attacks.

2. Admitting that public international law was not my favorite course in law school—in fact I can’t remember if I even took it—I will accept State Department Legal Adviser Harold Koh’s longstanding offer to lead me in a weekly tutorial on the subject for, as Koh puts it, “as long as it takes for (me) to get it.”

3. I accept the challenge to deliver a speech based on a rewrite of my Nobel Peace Prize acceptance speech in Oslo which includes the themes of “a vision of peace” and “how to get there”.

4. To make my rewrite of the Oslo speech easy for everyone to understand, I will even stop avoiding the use of the words “international law”, which should be easier after (2), if not (1).

5. I will ask Ambassador Koh to explain to me in plain English what some of these European and European-influenced international lawyers keep referring to as “dédoublement fontionnel”, which I think has something to do with the idea that nations should try to build and strengthen international law, instead of just trying to see what they can get away with. I don’t really get the point, but maybe I’ll understand better if it is spelled out in English.

6. I agree that we don’t really want to be giving a lot of money to governments who murder outspoken journalists like Syed Saleem Shahzad. I think Admiral Mullen said something about this. Dexter Filkins made a pretty compelling case that the murder was ordered by the highest officials in the Pakistani military in his New Yorker article on September 19. (Letter From Islamabad: The Journalist and the Spies–The murder of a reporter who exposed Pakistan’s secrets. The New Yorker, September 19, 2011.)

There are even reports that the Pakistani Ambassador to Washington, until recently, fears for his life in Pakistan as a result of “memogate”. But, as Richard Holbrooke used to stress, we have to deal with the Pakistanis, unsavory as that may be. I will agree to cutting U.S. aid to the military there by one half—from $1.3 billion to $650 million. Once they’ve arrested and tried the general(s) allegedly responsible for the order to murder Syed Saleem Shahzad, the other half of the aid will be restored.

7. I will enlist the CIA, with Leon Paneta’s help if necessary, in a secret program aimed at persuading the top civilian and military officials involved in Bush’s torture program to retire. Attorney General Eric Holder has concluded that none of them except a few low-level types should be prosecuted for torture, but if he has new evidence and wants to take up the issue again, I’ll let him. If other parties to the Torture Convention arrest some of these officials while they are traveling abroad, and ask us if it is OK for them to try them themselves, I’ll let the Attorney General make the call.

8. Ok, guys, I will finally issue an executive order that confirms my interpretation of U.S. laws banning torture as banning all kinds of torture, as that term is defined in the U.N. Convention Against Torture.

9. After completing (2) and (1), I will reconsider the position that U.S. citizens may be executed by drones or special commando operations without trial if they have been placed on a special targets list. I don’t really get the point about the fifth amendment language that “no citizen will be deprived of …life..without due process of law” and I don’t see how these guys can be given the right to an attorney, but I will commit to not invoking the “state secrets” doctrine to block further consideration of these issues by the courts.

10. Ok, while I think we already examined our strategy in Afghanistan in 2009, ad nauseum, I promise I will reread Ambassador Karl Eikenberry’s memos from November, 2009, for whatever that’s worth.

The Trenchant Observer

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International Law and the Use of Force: Drones and Real Anarchy Unleashed Upon the World

Sunday, July 17th, 2011

Recently a number of articles have been published that are of particular interest with respect to the development and use of drones.

See

William Wan and Peter Finn, “Global race on to match U.S. drone capabilities, Washington Post, July 4, 2011

Elisabeth Bumiller and Thom Shanker, “War Evolves With Drones, Some Tiny as Bugs,” New York Times, June 19, 2011

Peter Beaumont, “Campaigners seek arrest of former CIA legal chief over Pakistan drone attacks: UK human rights lawyer leads bid to have John Rizzo arrested over claims he approved attacks that killed hundreds of people,” The Guardian, July 15.2010

Michael Tennant, “U.S. Begins Drone Strikes in Somalia,” The New American, July 14, 2011

In previous articles, The Trenchant Observer has pointed to some of the troubling issues in international law raised by the use of unpiloted aircraft or drones in situations removed from the active battlefield in an on-going armed conflict.

Now, with other countries driving to develop comparable military capabilities in the form of drones, some as tiny as bugs, the short-sightedness of U.S. military policy regarding drones has come fully into view.

Moreover, as far as is publicly known, the United States has done nothing to develop in cooperation with other countries new international legal regimes and norms that might help to control what appears to be a headlong rush toward real anarchy among the nations of the world.

President Barack Obama rarely, if ever, speaks of international law. In his Nobel Prize acceptance speech, he spoke not of international law and legal norms, but rather of international “rules” or “norms”. The words “international law” are absent from his discourse.

One consequence has been an approach to international law that can be summed up as “If I can get away with it I can do it,” a formulation that goes back to Justice Oliver Wendell Holmes Jr.’s famous dictum about “the bad man theory of law”.

The system of international law is different from the domestic system in which a “bad man” might focus on the law only in terms of what he might be able to get away with. For the nations that are subject to international law are themselves the creators of the norms of international law. They are at once the legislature, the sheriff and the potential offender. This creates a dual responsibility on the part of nation states and their lawyers: They must not simply interpret international legal norms in a permissive way that allows them to do what they want, but also act to safeguard and strengthen the system of international law, and the way international legal norms wiil be interpreted by other countries. This is sometimes referred to by international lawyers as the “double-function” (or “dédoublement fonctionnel”) of international lawyers and states: in choosing a course of action they must not only seek to pursue their own short-term objectives, but also the critically-important longer-term objectives of building a viable international legal order that will contribute to their own security.

It is precisely in this area, of the obligation to build future international norms and regimes, while not weakening those that exist, that the United States has utterly failed with respect to drones. In past eras, legal regimes to prevent the use of space for military purposes, or the seabed, were developed in order to shape the future environment in which force might be employed. This the Obama administration has failed to do with respect to drones, both as a result of a very short-sighted pursuit of immediate military advantages through their use, and as a result of the fact that President Obama does not seem to understand very deeply the function of international law in safeguarding the nation’s security.

To facilitate reflection on these issues and the legality under international law of the use of drones, a review of the following articles previously published here might be useful.

See

UPDATE: Anwar al-Aulaqi: Targeted Killings, Self-Defense, and War Crimes, August 6, 2010

Targeted Killings: U.N. Special Rapporteur Alston Publishes Report to U.N. Human Rights Council, June 2, 2010

Targeted Killings by Drone Aircraft: A View From India, and Some Observations, May 20, 2010

Targeted Assassinations: Mahmoud al-Mabhouh, International Law, and Strategic Implications, February 17, 2010

U.S. Targeted Assassinations Violate Citizen’s Right to Life and Due Process, Undercut International Law
February 3, 2010

As Thomas M. Frank (1931-2009), a distinguished international lawyer and professor of international law at New York University, and Edward Weisband once observed, we should be careful whether to observe and how to interpret international law, because “the law you make may be your own.”

See Thomas M. Franck and Edward Weisband, “The Johnson and Brezhnev Doctrines: The Law You Make May Be Your Own,” Stanford Law Review, Vol. 22, pp. 979-1014 (1970).

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Targeted Killings: U.N. Special Rapporteur Alston Publishes Report to U.N. Human Rights Council

Wednesday, June 2nd, 2010
Predator Drone Firing Hellfire Missile

Predator Drone Firing Hellfire Missile

Today, Philip Alston, a highly distinguished human rights expert and U.N. Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, published a report addressing international law issues raised by the policy of “targeted killings”.

See Philip Alston, “Study on Targeted Killings,” (Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston, Addendum. (U.N. General Assembly Doc. A/HRC/14/24/Add.6)
May 28, 2010

See also the following:

Peter Finn, “U.N. official: U.S. should end CIA drone attacks in Pakistan,” The Washington Post, May 28,2010

Pankaj Mishra, “America’s exalted capacity for murder, “The Guardian (guardian.co.uk), May 21, 2010

Chase Madar, “How Liberal Law Professors Kill: Harold Koh Learns to Love Bomb Power,” Counterpunch, May 14-16, 2010.

For the most recent article on Targeted Killings (and links to earlier articles) by The Observer, see

“Targeted Killings by Drone Aircraft: A View From India, and Some Observations,”
May 20, 2010

The Trenchant Observer

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